Employment Tribunal Case Law – Does Liability for Harassment Transfer under TUPE?

Ask yourself the question, can liability for harassment transfer under TUPE, where the harasser transfers under TUPE and the Claimant was not employed at the point of the transfer?

If you have knowledge of TUPE, you will be aware that under these regulations, the transferee (the buyer) essentially steps into the transferor’s (seller’s) shoes with regards to transferring employees upon the transfer. Due to this, all the transferor’s rights, powers, duties, and liabilities under or in connection with the transferring employees’ contracts pass across to the transferee, as well as any acts or omissions of the transferor before the transfer, are treated as having been done by the transferee.

Given this, you may be thinking that the answer to the initial question is yes. However, this was not the case in Moore v Sean Pong Tyres, whereby it was held liability does not pass.

In this case, the Claimant claimed constructive dismissal and harassment against the Respondent. After the Claimant resigned, the alleged harasser had transferred from the Respondent to another company under TUPE. The Respondent wanted to add this company as an extra Respondent. The argument was a novel one – in harassment claims the employer is generally liable for the harassing acts of its employees. Here, the harassing employee had transferred to a new employer under TUPE.

The Respondent argued that liability for the harassing employee’s conduct should transfer to the transferee employer, even though the Claimant himself had not transferred. The tribunal refused the application in claiming that responsibility did not transfer and even if it did, the Respondent’s request was too late.

The Respondent appealed the tribunal’s decision. The EAT agreed with the tribunal and held that liability under the Equality Act 2010 does not transfer unless the claimant also transfers. Usually, when an employee does not transfer under TUPE, rights, and responsibilities towards them do not transfer either. The fact that the harasser had transferred did not alter this position.